InBrief7_web

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34 Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council The HRC, in common with other UN bodies that engage or address ANSAs, should take these considerations into account, with the aim of providing better protection to victims of both IHL and HRL violations. This In-Brief has reviewed the human rights obligations of ANSAs and the practice of the HRC with respect to them. It suggests that more research is needed to develop a shared and more comprehensive understanding of the notion of de facto authorities, and to identify the content of human rights norms that might be binding on ANSAs. It also recommends that the views of ANSAs should be taken into account on the norms and issues that concern them. 91 Finally, the international community should consider creating judicial or non-judicial mechanisms 92 that will make ANSAs more accountable for IHL and HRL violations that they commit. 91 See M. Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’, Journal of International Humanitarian Legal Studies 1 (2010), 5–51. 92 See A. Bellal, ‘Non-state armed groups in transitional justice processes’, International Centre for Transitional Justice, 2017.
Human Rights Obligations of Armed Non-State Actors: An Exploration of the Practice of the UN Human Rights Council 35 4. Suggested Analysis and Wording for Resolutions on ANSAs and Human Rights As an intergovernmental body the practice of the HRC reflects to some extent ‘state practice’, and as such may also influence the formation of customary international law. 93 In that perspective, HRC resolutions should not only be founded on international law but should be as clear and systematic as possible. Because the term ‘abuse’ does not have any legal content, and is therefore vague and misleading, this In-Brief does not recommend making a distinction between ‘abuses’ and ‘violations’ when assessing or denouncing the human rights conduct of ANSAs. The HRC should not distinguish ‘abuses’ from ‘violations’ when it addresses the human rights conduct of ANSAs in its resolutions. At a minimum, the term ‘violations’ should be used when: 1. The ANSA is a de facto authority or controls territory and a population over an extended period of time. 2. The ANSA violates norms than amount to an international crime or can be considered to violate jus cogens. A two step analysis, which should not necessarily be taken in a precise order, is suggested when addressing ANSAs in a specific resolution. The proposed analysis and wording, which will necessarily be a simplification of the issues at stake, should be understood as a framework for discussion and can, as such, be questioned. It is aimed at stimulating thoughts and ideas on this important matter, rather than closing the debate. 93 Article 38 (b) of the Statute of the International Court of Justice defines ‘international custom’ as ‘general practice accepted as law’.
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